For criminal defense lawyers, this story is, unfortunately, too familiar.  For others, it usually comes as surprise.  In United States v. Freeman, via one of the most depressing reads in the blawgosphere, Second Circuit Blog (because of subject matter, not any morose approach to the law or writing), our beloved Second Circuit Court of Appeals reminds us that an acquittal of murder charges is a mere technicality on the road to sentencing.

Michael Freeman went to trial on a five count indictment, the first three for drugs and the last two for murder.  He lost on the drug counts, but beat the murder.  Sounds good so far.  But SDNY Judge Loretta Preska wasn’t buying.  While the jury may have bought into that “beyond a reasonable doubt” nonsense, Judge Preska’s view was that Freeman committed the murders by “a preponderance of the evidence,” which is legal jargon for “he probably did it.” 

So what, you ask?  Well, says the Circuit, that’s all you need to sentence Freeman for the murders despite the acquittal.  You see, the sentencing judge is allowed to take into account all “relevant conduct,” more legal jargon for whatever the judge really thinks the defendant did.  That includes “acquitted conduct,” with the proviso that the judge “considers the jury’s acquittal” when determining a “reasonable sentence.” 

This doesn’t mean that judge has to hang her head and sentence the defendant only for the crimes for which he’s been convicted.  This means that the judge needs to state, in a clear Stentorian voice, that she has “fully considered the fact that the jury acquitted the defendant of the crime of murder,” and then sentence him for it anyway.  The trick is to pepper the opinion with the word “reasonable” as many times as possible, thereby rhetorically proving  that the judge has, indeed, been reasonable.  If a decision has four or five “reasonable” thrown in, that’s pretty much conclusive.

The problem with sentencing a defendant based upon “acquitted conduct,” or even uncharged conduct that is never proven but merely tossed into the Presentence Investigation Report by a loose-lipped agent or AUSA to make sure that the sentencing judge has the full flavor of a defendant, is that it kinda makes the whole point of trial a farce.  The good news, Mr. Defendant, is that we won the murder charge.  The bad news is that they are going to execute you on Tuesday anyway.

So the point of a trial would be what?  That’s right.  As long as you get convicted of something, thus making you eligible for a lovely stay in a federal penitentiary, courtesy of the United States of America, you may well have your visit extended based upon anything the prosecutors threw against the wall. 

The sophistry of sentencing on acquitted conduct is one of the most anti-American concepts that can be imagined.  I can’t imagine, Justice Scalia, that Jimbo Madison would have wanted it that way.  And yet, it is part of the scorched earth that makes up federal criminal practice.  Remind me again about that freedom that we’re fighting for in Iraq?